Exchange on History and International Human Rights in the Virginia Journal of International Law

Scholars have tried to explain [rights violations] variation on the basis of current conditions in countries—such as democracy and civil war—and events from the recent past—such as ratification of human rights treaties. This literature has ignored the influence that history may have on human rights performance. Drawing on the literature on economic development—which has shown that institutions, events, and conditions from the distant past heavily influence the rate of economic growth across countries today—we argue that scholars should study whether the same factors have influenced modern human rights performance. Our exploratory look at the data suggests that respect for human rights today may be related to the geographic location of affected populations centuries ago, the nature of the institutions that emerged at that time, and cultural traits that have been passed down from generation to generation. These preliminary results suggest that human rights scholars could make substantial progress toward understanding states’ human rights practices by building on the work of development economics.

In this response essay, we disaggregate several aspects of the human rights regime that much of the existing scholarship—including The Influence of History—has largely aggregated. In doing so, we show that Chilton and Posner’s aggregation obscures nuances of treaty engagement and effects that might meaningfully implicate the normative role ofthe human rights regime. We argue that the “treatment” of a human rights institution is not synonymous with the point of ratification. As others have noted, ratification commonly works through international and domestic processes and institutions and operates over a long time-horizon, extending well before and after the moment of legal obligation. We conclude that, to understand the process by which treaty engagement might influence rights conditions, scholars should build on those studies that recognize and take advantage of this insight.

This article continues the process of testing [Chilton and Posner’s] argument by conducting several statistical analyses. The analysis yields several key findings. First, the historical variables emphasized by Posner and Chilton, collectively, are fairly powerful in terms of predicting human rights abuses. Second, the historical variables perform less well at predicting contemporary abuses in more populous countries. Third, contemporary judicial independence predicts contemporary abuses in ways not captured by historical variables. Fourth, historical variables perform relatively poorly at predicting abuses during civil wars, when abuses are often at their worst. Finally, many of the individual historical variables do not add significant explanatory power to models that include contemporary variables.

Professors Chilton and Posner do not theorize the mechanisms through which historical conditions affect contemporary human rights practices. This Essay draws on the development economics literature to articulate some preliminary hypotheses on how fixed geographic and historical factors can affect contemporary human rights. More generally, it suggests that, if we want to develop a research agenda that incorporates history into our understanding of contemporary human rights practices, we need theory to explain how fixed historical and geographic factors affect contemporary human rights. Second, Chilton and Posner do not address whether historical trends can be reversed. This Essay focuses on this question by drawing on the concept of critical junctures. This Essay illustrates the potential importance of critical junctures by exploring the development of gay rights in Argentina and South Africa, … case studies [which] provide important insights into the pathways through which historical trends can be reversed. This Essay concludes that, if human rights scholarship is to take history seriously, it should include the study of critical junctures, and not just path dependence.